clarifying the effect of the January 24 order granting reconsideration
(Docket No. 65633). 1 Eighth Judicial District Court, Clark County;
Michelle Leavitt, Judge.
Motion for partial dismissal of Docket No, 65043
Respondents have filed a motion to partially dismiss the
appeal in Docket No. 65043, or alternatively, to stay arbitration
proceedings pending resolution of that appeal, arguing that, in the context
of appealing from the January 24 order granting reconsideration of an
earlier district court order reinstating the action in District Court Case
No. 10-614185, appellant has impermissibly sought to appeal a
subsequent decision, entered in the minutes, that deconsolidated the
dismissed action, Case No. 10-614185, from an ongoing district court
action, Case No. 13-689389. Respondents assert that the deconsolidation
decision is not appealable and as a result of appellant's identifying that
decision in its notice of appeal, the district court judge presiding over Case
No. 13-689389 has refused to rule on respondents' pending summary
judgment motion filed in that action. Appellant opposes partial dismissal,
arguing that the deconsolidation decision is appealable as a special order
after final judgment. Respondents have replied, asserting that they will
withdraw the motion to dismiss so long as this court stays the arbitration
proceedings that appellant initiated in the meantime. 2
Having considered the parties' arguments, we dismiss the
appeal as to any challenge to the deconsolidation decision. Absent
deconsolidation, the January 24 order granting reconsideration would not
'The clerk of this court shall modify the caption of both dockets to
conform to the caption of this order.
2Appellant's motion to file a sur-reply is denied.
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be appealable, see Mallin v. Farmers Insurance Exchange, 106 Nev. 606,
797 P.2d 978 (1990) (recognizing that consolidated district court actions
are treated as one case for appellate purposes), but a post-judgment
district court determination deconsolidating a dismissed action from an
ongoing action does not alter the dismissal itself or affect the parties'
rights growing out of the judgment, and it is thus not subject to challenge
on appeal. See NRAP 3A(b)(8); Gumm v. Mainor, 118 Nev. 912, 59 P.3d
1220 (2002); Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 678
P.2d 1152 (1984) (recognizing that generally this court has jurisdiction to
consider an appeal only when the appeal is authorized by statute or court
rule). Accordingly, the appeal is Docket No. 65043 is dismissed as to the
deconsolidation determination. 3
Dismissal of Docket No. 65633 for lack of jurisdiction
After appellants appealed from the January 24 district court
order granting reconsideration of the order reopening Case No. 10-614185,
respondents apparently filed a motion seeking to stay the arbitration
proceedings that appellants initiated to resolve the parties' underlying
dispute. In resolving the stay motion, the district court entered an order
on April 9, 2014, clarifying that the January 24 order granting
reconsideration reversed all aspects of the earlier order, which reopened
the case, consolidated it with Case No. 13-689389, and ordered that
arbitration proceed. The court thus clarified that because it had no
authority to reopen Case No. 10-614185, it likewise had no authority to
order that arbitration may proceed, and the effect of the order granting
reconsideration was to put the parties back into the same position they
were in when the court originally dismissed the action in March 2013. In
3 Respondents' alternative request for a stay of arbitration is denied.
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its docketing statement, appellant contends that the April 9 clarification
order is appealable as a final judgment under NRAP 3A(b)(1).
As no statute or court rule authorizes an appeal from a district
court order clarifying the effect of an earlier order, we lack jurisdiction to
consider appellant's appeal of the April 9 order clarifying the January 24
order. NRAP 3A(b); Taylor Constr. Co., 100 Nev. 207, 678 P.2d 1152. We
therefore dismiss the appeal in Docket No. 65633, but in so doing, we note
that appellant may challenge any aspect of the January 24 order granting
reconsideration in its appeal in Docket No. 65043, including its effect of
rescinding the earlier decision that arbitration may proceed. 4
Appellant is directed to show cause why Docket No. 65043 should not be
summarily affirmed.
Although this court has jurisdiction to consider appellant's
appeal from the January 24 district court order granting reconsideration
and rescinding the order that reinstated the dismissed case, before
reinstating briefing in that appeal, appellant is directed to show cause
why the district court's order should not be summarily affirmed. In
particular, because the district court appears to have properly concluded
that it lacked jurisdiction to reinstate Case No. 10-614185, which was
previously dismissed in a March 5, 2013, order, it likewise appears that
the court properly granted reconsideration of the order reinstating the
case, such that summary affirmance of the reconsideration order is
warranted. See SFPP, L.P. v. Second Judicial Dist. Court, 123 Nev. 608,
612, 173 P.3d 715, 717 (2007) (providing that "once a final judgment is
entered, the district court lacks jurisdiction to reopen it, absent a proper
and timely motion under the Nevada Rules of Civil Procedure"). Under
4 In light of the dismissal of the appeal in Docket No. 65633,
appellant's motion to consolidate Docket Nos. 65043 and 65633 is denied.
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this authority, it appears that if appellant wanted to reopen the finally
adjudicated case, such a request needed to be made in conformity with the
Nevada Rules of Civil Procedure. 5 Because appellant's November 19,
2014, motion to reopen the case failed in this regard, the district court
appears to have lacked jurisdiction to grant the motion. Id.; see EDCR
2.90(c) (allowing a party whose action is dismissed for failure to prosecute
to seek reinstatement within 30 days of the dismissal); NRCP 60(b)
(providing that a party generally must file a motion for relief from
judgment within six months after the proceeding was taken or the date
when written notice of entry of the order is served). Accordingly,
appellant shall have 20 days from the date of this order to show cause why
the appeal in Docket No. 65043 should not be summarily affirmed.
Respondents shall have 11 days from service of appellant's response to file
and serve any reply. Briefing in Docket No. 65043 remains suspended.
It is so ORDERED.
Parraguirre
J.
Cherry
5Appellant asserts in its docketing statement that it properly
challenged the March 5, 2013, order by way of its November 19, 2013,
NRCP 60(a) motion. The March 5 order, however, dismissed the case
under EDCR 2.90 for failure to prosecute, and thus, even if it was
incorrect to dismiss on that ground, the district court's decision to do so is
not the type of error contemplated for correction under NRCP 60(a).
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cc: Hon. Michelle Leavitt, District Judge
Backus, Carranza & Burden
Peel Brimley LLP/Henderson
Eighth District Court Clerk
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